A violation of international law?

Is Guantanamo Bay in violation of international law? What about children, migrants or disabled in prison?

Arbitrary Detention is prohibited in Articles 9 of the Universal Declaration and the Covenant on civil and political rights, Article 5 of the European Convention on human rights and other conventions.

Some countries still resist the application to their military operations, acts abroad or to groups such as migrants, children, psychiatric patients or the disabled.

General international law is gradually given effect through a process of clarification and restatement with new treaties, formation of customary law, international courts and UN bodies and peer review of states.

The rapporteur on arbitrary detention

Professor Mads Andenæs recently ended his six-year term in the UN Working Group of Arbitrary Detention where he served as the Chair-Rapporteur or President. The Working Group presented its report on May 4th, 2015.

They were drafted at the request of the UN Human Rights Council to which they were submitted in September 2015 and where they got general support and approval by member states, other states and NGOs.

The reception of the report

International Commission of Jurists, ICJ, has welcomed the attention given to the application of human rights standards alongside international humanitarian law and the related provisions of the document pertaining to detention in armed conflict.

According to ICJ, there is an especially important value in this aspect of the Basic Principles and Guidelines, including for the combating of incommunicado and secret detention, enforced disappearance and torture and other cruel, inhuman or degrading treatment.

Further, ICJ has produced a Legal Commentary on elements of the Basic Principles and Guidelines pertaining to detention in armed conflict.

Mads Andenæs

Mads Andenæs served as the UN Special Rapporteur on Arbitrary Detention, and the Chair of the UN Working Group on Arbitrary Detention, reporting to the UN Human Rights Council and the UN General Assembly.

He was appointed a UN Human Rights Mandate Holder serving and a member of Working Group in 2009, and was elected chair and Special Rapporteur from2013.

He is a member of the Executive Council of the International Law Association.

He has held senior academic appointments in the United Kingdom, including as Director of the British Institute of International and Comparative Law, London and Director of the Centre of European Law at King’s College, University of London. He remains a Visiting Research Fellow of the Institute of European and Comparative Law, University of Oxford and a Senior Research Fellow at the Institute of Advanced Legal Studies, School of Advanced Studies, University of London.

In 2008, Mads Andenas returned to the University of Oslo where he holds a Chair in the Faculty of Law.